UNDT/2022/103, Shumba
It was crucial for the Tribunal to examine the relationship between the Applicant and the alleged victim of his behaviour. There was clear evidence of constant financial support to the complainant/victim. The Applicant built a relationship of trust with the complainant/victimthe where she was able to rely on him for support and was comfortable to meet with him outside of the UNFPA Malawi Country Office. The victim was placed in a very vulnerable position. The abuse by the Applicant was not an isolated episode, as the Applicant is accused also for sexual assault and harassment in different places and under different circumstances. In cases that involve misconduct of a sexual nature, credible oral victim testimony alone may be fully sufficient to support a finding of serious misconduct, without further corroboration being required. All the acts attributed to the Applicant were demonstrated by clear and convincing evidence. The core of the accusations were confirmed and corroborated by the recollection of the events by the witnesses heard by the investigators. The Tribunal did not therefore find it necessary to hear complainant/victim and other witnesses in a hearing, given that all of them gave already very detailed and consistent statements in a date closer to the events.
The Applicant challenged the Respondent’s decision to summarily dismiss him from the Organization for serious misconduct pursuant to staff rule 10.2(a)(ix).
When the disciplinary sanction results in the staff member’s separation from service, the alleged facts must be established by clear and convincing evidence. This standard of proof requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt. In other words, it means that the truth of the facts asserted is highly probable. The Administration has discretion to impose the disciplinary measure that it considers adequate to the circumstances of a case and to the actions and behaviour of the staff member involved. The Tribunal will not interfere with administrative discretion unless “the sanction imposed appears to be blatantly illegal, arbitrary, adopted beyond the limits stated by the respective norms, excessive, abusive, discriminatory or absurd in its severity.” The Appeals Tribunal has held that the Secretary-General has the discretion to weigh aggravating and mitigating circumstances when deciding upon the appropriate sanction to impose.